Subsidiarity, democratic deficit and posting of workers

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The Lisbon Treaty introduced new contents to the role of national parliaments in the EU decision making process alongside the respect for the principle of subsidiarity by the European institutions. According to article 5, No. 3, TEU under the scope of non-exclusive competences, the Union only intervenes if the objectives of certain action (i) cannot be sufficiently achieved by Member States (efficiency criterion) and (ii) can be better achieved by the EU due to its dimension or intended effects (added value criterion).

So, since the entry into force of the Lisbon Treaty, Protocols No. 1 and No. 2 annexed to the treaties allow that national parliaments evaluate the compliance of the European draft legislative acts with the principle of subsidiarity – and if they conclude that there is incompliance, the respective reasoned opinion shall address this understanding. Under the ordinary legislative procedure, if the reasoned opinions represent at least a simple majority of the votes allocated to the national parliaments, the European Commission proposal must be reviewed. It can be amended, withdrawn or sustained (Article 7, No. 3, Protocol No. 2).

Nevertheless, it is important to test the national parliament’s arguments in order to confirm if (i) they have legal grounds to claim the infringement of subsidiarity and (ii) the result of such parliamentary intervention can be regarded as positive to the EU legal system as a whole. Even though this proposed exercise does not compromise, theoretically, the democratic relevance of national parliament’s participation in the EU’s decision making process, it can point out some fragilities concerning (i) the appreciation of the European integration process by national parliamentary authorities and (ii) the adequacy of the EU democratic deficit narrative and the instruments created so far to face it.

What has been taking place, somehow all over Europe, is that the motivation of the reasoned opinions is dogmatically fragile and it does not consider the criterion of the principle of subsidiarity. Therefore, the effect produced by the reasoned opinion is mostly of political orientation, instead of a greater dogmatic rigour as to the subsidiarity control.

The proposal for altering the rules on posting of workers is an illustrative, recent example of that. The Directive 96/71 (concerning the posting of workers in the framework of the provision of services) and the Directive 2014/67 (which enforces the first and whose transposition deadline ends on June, 18th 2016) establish a set of employment conditions that the service provider must respect during the period of posting (maximum working time and minimum rest periods; minimum rates of pay and overtime; minimum length of paid annual holidays; health, safety and hygiene conditions at work; protective measures with regard to the terms and conditions of employment of pregnant women or women who have recently given birth, of children and of young people; equality of treatment between men and women; etc.)

However, those rules are not fulfilled in the host Member State and the worker is found in a vulnerable situation when posted away from his/her home country. According to the latest data available, in 2014 there were over 1.9 million posted workers in the EU in the framework of the provision of services. Those workers do not enter the labour market in the host country as they remain associated to the company they work for in the Member State of origin.

Despite the EU efforts, it will not be an easy task to change the course of the situation. Following the reactions of some national parliaments, especially in Eastern Europe, to the recent proposal of updating the directive concerning the posting of workers [COM (2016) 128] calling on the incompliance with subsidiarity in their reasoned opinions speaks for itself. The proposal is driven by (i) the elimination of fraudulent practises in the matter of posting workers, particularly on undeclared work – as for instance the false self-employment or the so-called wage directly paid in hand, in which only a percentage of the salary is officially paid and the other part is handed to the worker without receipt and (ii) the consolidation of the principle equal pay for equal work in the same place.

The opposition to such measures is supported by the argument that this principle would be incompatible with the internal market, once the different levels of wages constitute a legitimate element of competition advantage to service providers. Besides, the opponents of the proposal defend that, on social security grounds, the posted workers should continue to be covered by the legislation of the original Member State and, as a consequence, should not be taken actions to revert the relation between the posting of workers and the coordination of systems of social security. In that aspect, they argue that a revision of Directive 96/71 would be premature and that it should be postponed to a moment after the ending of transposition deadline of the Directive 2014/67 and with proper evaluation of its outcomes.

Hence, with the entry into force of the Lisbon Treaty an institutionalization of the role and the presence of national parliaments took place under the application of the principle of subsidiarity. In other words, under the question, always very sensitive politically-wise, of sharing and exercising competences in the context of the European integration. There are no strong grounds, in light of the democratic theory, to oppose this – even if the legal criteria of subsidiarity are not taken seriously in the reasoned opinions presented by the national parliaments. The institutionalization may be seen as a response, perhaps lightened, to the repetitive critique about the alleged democratic insufficiency in the EU functioning. Yet, those critiques come sometimes from a standpoint which misunderstands the supranational tendencies and that does not conceive democracy out of the internal structures. As a result, it tries to reproduce, at the supranational level, instruments already tested nationally – and proven worn-out.

It is necessary to be careful because the narrative that overvalues the democratic deficit became too easy for the national political elites to exonerate from their responsibilities in the European integration – as if they did not influence the decisions made in Brussels. In addition, the democratic deficit speech sometimes is mixed with a rejection of supranationality – which is in the core of integration – in favour of the classical defence of Westphalian sovereignty and the renationalization of competences attributed to the EU, provided by the fragmentation forces against which the European integration is being confronted.

Recent developments make us question to what extent the intervention of the national parliaments effectively contribute to the refinement of the juridical model of the European integration and, mostly, to the conservation of recognized rights in the scope of the European citizenship and the legal equality of the nationals of the Member States upon which it is build.

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